Supreme Court to hear appeal in Fenwick MacIntosh case

Keith Doucette, THE CANADIAN PRESS
Published Thursday, June 28, 2012 11:09AM ADT
Last Updated Thursday, June 28, 2012 6:38PM ADT

HALIFAX -- The Supreme Court of Canada will hear an appeal of a lower court's decision to throw out 17 sex offence convictions against a Nova Scotia man involving boys in the 1970s.

The Nova Scotia Court of Appeal overturned convictions on eight counts of indecent assault and nine counts of gross indecency against Ernest Fenwick MacIntosh last year, ruling that a 14-year delay between the original allegations and the trial was too long.

Jennifer MacLellan, the senior Crown attorney handling the case, said she made four "good phone calls" to the complainants involved in the appeal after the high court agreed Thursday to hear legal arguments in the case.

"I think they are relieved as well and pleased with the outcome of the decision and realize this is one step along the way," MacLellan told a news conference in Halifax.

The allegations against MacIntosh, a former Cape Breton businessman, date back to the 1970s but only surfaced in 1995 when he was working in India.

An extradition request was not made until 2006 and MacIntosh was returned to Canada in 2007. He faced two trials on the charges.

The Court of Appeal overturned all 17 convictions from the two separate trials, finding that MacIntosh's right to be tried within a reasonable time was infringed. MacIntosh was convicted of molesting four boys, although the charges filed against him in 1995 alleged he engaged in sex acts with six boys.

MacLellan said the Supreme Court could either reinstate the convictions, order a new trial or uphold the appeal court decision.

In a brief filed with Canada's top court in February, the Crown argued the Court of Appeal erred in its decision because it didn't give enough weight to the public interest in having a trial despite the passage of time.

The brief argued the court failed to "consider society's heightened interest in a trial on the merits for serious allegations of sexual violence against children and young persons."

Prosecutors also contended that the Nova Scotia decision had created legal confusion because the Appeal Court focused exclusively on the actions of the state in its efforts to return the accused from India and characterized MacIntosh's decision to remain out of the country as "passive inaction."

"We put forward ... various cases from other provinces that we were of the opinion had treated similar situations rather differently," said MacLellan.

MacLellan said the prosecution was not responsible for the delay in getting the case to trial.

"The position that we have taken throughout has been that the primary responsibility for the delay in this case lies at the feet of Mr. MacIntosh," she said. "That is the position that we will continue to advocate before the Supreme Court of Canada."

The Crown also disputed the Appeal Court's conclusion that the trial judge misunderstood the evidence and that some of the evidence of those who testified raised issues of credibility.

In his response, defence lawyer Brian Casey argued that MacIntosh only knew about two of the charges against him and wasn't responsible for returning to face other charges he was unaware of.

The defence brief also contended that police failed to expedite the case when they decided not to proceed with charges involving one complainant in 1995, before reversing that decision in 2001.

Casey could not be reached for comment on Thursday.

Meanwhile, MacLellan said both sides would file more documents and arguments with the Supreme Court over the summer and a date would eventually be set for the hearing, but the case isn't expected to be heard before 2013.